Sobering Thoughts

By David Burton

We came close to a law that would have made sober drivers guilty of DUI

Imagine that you, a medical cannabis patient, are driving home from work when a car driven by a stoned-out oxycodone addict runs a red light and broadsides you. You wake in the hospital to find that the driver who hit you had been ticketed for running a red light and released. You, however, are handcuffed to your hospital bed—turns out that joint you smoked a week ago still showed up in your bloodstream, and you’re now facing felony DUI charges.

That could have happened, cannabis activists warned, if California lawmakers had passed Assembly Bill 2552—the so-called “Driving Under the Influence of Drugs” measure—before it was amended just a few days ago by its standard bearer, Assemblywoman Norma Torres (D-Pomona). The new law would have made it a DUI-level crime for drivers to operate a vehicle with any measurable level of marijuana in your system—even if the marijuana detected came from smoking a joint a month previously. In other words: even if you were stone-cold sober behind the wheel, you would have been considered “under the influence” under the original terms of AB 2552.

Norma Torres, what were you smoking?

Luckily, the proposed law has been changed, but critics of AB 2552 had worried that the bill would, for the first time, have exposed unimpaired drivers to arrest: Even modest marijuana use leaves detectable levels of THC in the system long after the effects of the drug has worn off. For medical marijuana patients who use cannabis several times a week, the bill would have essentially made driving illegal at any time.

“Under the present law, anyone deemed to be incapable of driving safely and under the influence of an illicit substance can be charged with a DUI,” Paul Armentano, deputy director of NORML, said prior to AB 2552’s amendment. “The state then has the burden to show the driver had recently ingested that substance—whether it be oxycodone, marijuana or an antihistamine—and that it made him impaired. What Torres’ bill [sought] to do is change not how the person is prosecuted, but the burden of proof . . . [I]f the state [had been able to show] the mere presence of marijuana, then they would have met their burden of proof.”

Torres has amended the bill at least twice now—the first time shifting its focus from just marijuana to any Schedule I drug. That did nothing to stem fierce criticism from groups like NORML and the anti-drug-war group Law Enforcement Against Prohibition, which said the original measure was all the more obnoxious because there appears to be no real need for it. While Torres insisted she introduced AB 2552 in response to data showing drug involvement in 30 percent of all crashes in California in 2010, Armentano and others point out that traffic fatalities have declined significantly in the state since Proposition 215 passed in 1996.

“Torres said she’s very concerned there’s been an increase in drugged driving in California, but she can’t substantiate it,” Armentano says. “When asked for the data, she says the data isn’t available. If you look at the past few years when there’s been an increase in the number of people using marijuana in the state, you also see a significant, year-to-year decline in traffic fatalities. There doesn’t appear to be a need for such an extreme, one-size-fits-all legislation that would lower the state’s burden of proof.”

Torres’ bill would have, both critics and supporters said, set up a “zero-tolerance” standard.

“This will not only cause significant problems for medical cannabis patients, but it will create a backlog of DUI cases in the courts,” Kandice Hawes, president of the Orange County chapter of NORML, said prior to Torres changing AB 2552. “Everyone will have to start hiring DUI experts. People who used cannabis a month to six months ago could conceivably be arrested . . . It makes no sense, and just wastes more of our resources.”

Torres might have come to her senses recently since she dropped the “sober DUI” elements to the amendment.

“California NORML is happy to report that Assemblywoman Norma Torres has amended her DUI bill AB 2552 to drop objectionable new criminal penalties for driving with residues of marijuana or illicit drugs,” the group announced a few days ago.